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I was approached by two families looking for shared before

and after school care for...
I was approached by two families looking for shared before and after school care for their combined 4 children. After doing research into the different job descriptions that cover my role as a care provider I reached out to them about the tax obligations they would have. I saw on the IRS website that I would be classified as a household employee because they are giving me a job description, hours and days to work specifically with daily duties and responsibilities out of their house(s), as well as paying me a wage specified by them on days specified by them. They are insistent that I would be classified as an independent contractor. Is this legal?
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Answered in 13 minutes by:
9/16/2013
Dwayne B.
Dwayne B., Lawyer
Category: Employment Law
Satisfied Customers: 34,052
Experience: Employment Law Expert
Verified

Dwayne B. :

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

Dwayne B. :

No, they are really incorrect. The IRS isn't cracking down on household employees yet but they will at some point.

Dwayne B. :

The issue is whether they have the right to control the way the work is done and when.

Dwayne B. :

Just calling someone an independent contractor does not make it so.

Dwayne B. :

The specific definition of an independent contractor can be found at http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Defined

Dwayne B. :

The IRS does stress that it depends on the facts but there is nothing about your situation that would indicate you are an independent contractor.

Dwayne B. :

That one specifically discusses household workers.

Dwayne B. :

The key in that publication is the language "The worker is your employee if you can control not only what work is done, but how it is done."

Customer:

They asked me to create a contract specifying the duties that I would perform for them/their families as a care provider and said that in essence I would be contracting their services. I told them that as parents they have specific rights towards the care and treatment of their children that I cannot legally be responsible for, (discipline, safety concerns ect.) So in essence, with the information you have provided me based off the IRS guidelines, there is no legal way for me to be classified as an independent contractor if I am performing the job duties they have given to me? (Job duties being: dropping off kids in morning, picking up in evening from school, art, crafts, projects, homework tutoring, fieldtrips with parents, specific days and hours, requiring me to be available at any time during the day in case a child gets sick {preventing me from getting another job if I chose} meal time prep and feeding ect...) Is that correct?

Dwayne B. :

That is my understanding of the IRS rules and the way they are interpreting them. Those two publications are pretty clear.

Dwayne B. :

The problem is that the IRS has been lax in the enforcement for years and so people just think that if they designate someone an independent contractor then they are.

Dwayne B. :

That's just not true.

Customer:

Thank you for your time! I appreciate your clarification on this matter, I wasn't sure if I was misinterpreting the information or not.

Dwayne B.
Dwayne B., Lawyer
Category: Employment Law
Satisfied Customers: 34,052
Experience: Employment Law Expert
Verified
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